[Federal Register Volume 65, Number 7 (Tuesday, January 11, 2000)]
[Rules and Regulations]
[Pages 1557-1571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-630]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 990713189-9335-02; I.D. 060899B]
RIN 0648-AK79
Fisheries of the Northeastern United States; Spiny Dogfish
Fishery Management Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to initiate management of spiny
dogfish (Squalus acanthias) through implementation of the Spiny Dogfish
Fishery Management Plan (FMP) under the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act). This final rule
implements the following measures: A commercial quota; seasonal (semi-
annual) allocation of the quota; a prohibition on finning; a framework
adjustment process; establishment of a Spiny Dogfish Monitoring
Committee; annual FMP review; permit and reporting requirements for
commercial vessels, operators, and dealers; and other measures. The
intent of this rule is to conserve spiny dogfish in order to acheive
optimum yield from the resource.
DATES: Effective February 10, 2000.
ADDRESSES: Copies of the FMP, the Regulatory Impact Review (RIR), the
Initial Regulatory Flexibility Analysis (IRFA) contained within the
RIR, the Supplement to the FMP dated May 1999, and the Final
Environmental Impact Statement (FEIS) are available
[[Page 1558]]
from Daniel Furlong, Executive Director, Mid-Atlantic Fishery
Management Council (MAFMC), Room 2115, Federal Building, 300 South New
Street, Dover, DE 19904-6790. The IRFA, its summary in the proposed
rule, the comments and responses on economic impacts, and the
discussion in the classification section of the final rule constitute
the Final Regulatory Flexibility Analysis (FRFA) for this action.
Comments regarding burden-hour estimates for collection-of-
information requirements contained in this rule should be sent to
Patricia A. Kurkul, Regional Administrator, Northeast Region, National
Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-
2298, and to the Office of Information and Regulatory Affairs, Office
of Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA
Desk Officer).
FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, Fishery Policy
Analyst, at 978-281-9279.
SUPPLEMENTARY INFORMATION: The spiny dogfish (Squalus acanthias) is a
common small shark that inhabits the temperate and sub-Arctic latitudes
of the North Atlantic Ocean. In the Northwest Atlantic, spiny dogfish
range from Labrador to Florida, but are most abundant from Nova Scotia
to Cape Hatteras. They migrate seasonally, moving north in spring and
summer, and south in fall and winter. Spiny dogfish are considered a
unit stock in the Northwest Atlantic Ocean.
Spiny dogfish landings on the East Coast have increased
dramatically in the last 10 years as export markets for dogfish have
been developed. The fishing mortality rate (F) has correspondingly
risen from below an estimated F=0.1 in the 1980's to the current
estimate of F=0.3. Dogfish landings have been primarily composed of
females because they attain a larger size than males, and large fish
are preferred by the processing sector. The 26th Northeast Regional
Stock Assessment Workshop (SAW 26), in 1998, indicated that biomass
estimates of mature females (> 80 cm) have declined by over 50 percent
since 1989. Recruitment of juvenile spiny dogfish was the lowest on
record in 1997. The combination of increased fishing mortality,
declining biomass of mature females, and low recruitment have
contributed to the overfished condition of the stock.
NMFS notified the Mid-Atlantic and New England Fishery Management
Councils (Councils) on April 3, 1998, that spiny dogfish was being
added to the list of overfished stocks in the Report on the Status of
the Fisheries of the United States, prepared pursuant to section 304 of
the Magnuson-Stevens Act. The Magnuson-Stevens Act requires the
regional fishery management councils to prepare measures within 1 year
of notification to end overfishing and to rebuild the overfished stock.
The FMP was developed jointly by the Councils, with the Mid-
Atlantic Council having the administrative lead.
A Notice of Availability (NOA) for the FMP was published in the
Federal Register on June 29, 1999 (64 FR 34759), and solicited public
comment through August 30, 1999. The proposed rule to implement the FMP
was published in the Federal Register on August 3, 1999 (64 FR 42071),
and solicited public comments through September 17, 1999. The NOA for
the FEIS was published on August 20, 1999 (64 FR 45541), and solicited
comments through September 10, 1999. Comments received by August 30,
1999, in response to any of these documents, were considered when NMFS
made the decision to partially approve the FMP on September 29, 1999.
The only measure in the FMP that was disapproved was the specification
of 180,000 mt as the spawning stock biomass (SSB) target level. The SSB
target was not a regulatory measure and the disapproval has no impact
on these final regulations.
Management Measures
This final rule implements the following measures contained in the
FMP: (1) A commercial quota; (2) seasonal (semi-annual) allocation of a
commercial quota; (3) a prohibition on finning; (4) a framework
adjustment process; (5) the establishment of a Spiny Dogfish Monitoring
Committee; (6) annual FMP review; (7) permit and reporting requirements
for commercial vessels, operators, and dealers; and (8) other measures
regarding sea samplers, foreign fishing, and exempted fishing
activities.
Commercial Quota
An annual spiny dogfish commercial quota will be allocated to the
fishery to control F. The quota will be set at a level to assure that
the F specified for the appropriate year in the FMP and Sec. 648.230(a)
will not be exceeded. The annual commercial quota will be established
by the Regional Administrator, Northeast Region, NMFS (Regional
Administrator), based upon recommendations made by the Councils with
the advice of the Spiny Dogfish Monitoring Committee and the Joint
Spiny Dogfish Committee. The quota recommendation will be based upon
projected stock size estimates for each year, as derived from the
latest stock assessment information, coupled with the target F
specified for each year. The quota is specified for a fishing year that
begins on May 1, and is subdivided into two semi-annual periods. The
period from May 1-October 31 is allocated 57.9 percent of the annual
quota and the period from November 1-April 30 is allocated 42.1 percent
of the annual quota. The percent allocation of quota between the two
semi-annual quota period may be revised through the framework
adjustment process described herein.
All spiny dogfish landed for sale in the states from Maine through
Florida will be applied against the commercial quota, regardless of
where the spiny dogfish were harvested. NMFS will monitor the fishery
to determine when the quota for a semi-annual quota period is reached.
NMFS will publish notification in the Federal Register prohibiting
possession, fishing for, or landing of spiny dogfish by vessels with
Federal spiny dogfish permits from the date on which the quota is
projected to be attained through the remainder of the quota period.
The rebuilding schedule and corresponding annual quotas, as
described in the FMP, were developed assuming an implementation date of
May 1, 1999. According to the rebuilding schedule adopted by the
Councils for the period May 1, 1999, to April 30, 2000, F is reduced to
0.2, which results in a quota of 22,059,228 lbs (10,006 mt), for the
first year. The semi-annual allocations for this period are 12,772,293
lb (5,793.5 mt) for the period May 1, 1999-October 31, 1999; and
9,286,935 lb (4,212.5 mt) for the period November 1, 1999-April 30,
2000. Due to delays in the development of the FMP, the implementation
date of this FMP will be February 10, 2000. Therefore, the requirements
established by this final rule concerning quotas apply for the second
semi-annual period only.
For the remaining years of the rebuilding plan, the FMP specifies
that F will be reduced to 0.03. This has been initially projected to
result in annual quotas ranging from approximately 2,901,254 lbs (1,316
mt) to 3,198,875 lbs (1,451 mt) until rebuilding is achieved. The
quotas in the FMP were developed assuming, among other things, that
current levels of discard mortality will continue at recent average
annual rates.
Prohibition on Finning
Finning, the act of removing the fins of spiny dogfish and
discarding the carcass, is prohibited. Vessels that land
[[Page 1559]]
spiny dogfish are prohibited from landing fins in excess of 5 percent,
by weight, of the weight of spiny dogfish carcasses landed. Fins may
not be stored on board a vessel after the vessel lands spiny dogfish.
Framework Adjustment Process
The Councils may add or modify management measures through a
framework adjustment process that establishes a streamlined public
review process. The following management measures could be implemented
or adjusted at any time through the framework adjustment process: (1)
Minimum fish size; (2) maximum fish size; (3) gear requirements,
restrictions, or prohibitions, including, but not limited to, mesh size
restrictions and net limits; (4) regional gear restrictions; (5)
permitting restrictions and reporting requirements; (6) recreational
fishery restrictions, including possession limits, size limits, and
season/area restrictions; (7) commercial season and area restrictions;
(8) commercial trip or possession limits; (9) fin weight to carcass
weight restrictions; (10) onboard observer requirements; (11)
commercial quota system, including commercial quota allocation
procedure and possible quota set-asides to mitigate bycatch and to
conduct scientific research or for other reasons; (12) recreational
harvest limit; (13) annual quota specification process; (14) FMP
Monitoring Committee composition and process; (15) description and
identification of essential fish habitat (EFH); (16) description and
identification of habitat areas of particular concern; (17) overfishing
definition and related thresholds and targets; (18) regional season
restrictions (including the option to split seasons); (19) restrictions
on vessel size (length and gross registered tonnage (GRT)) or shaft
horsepower; (20) target quotas; (21) provisions to mitigate marine
mammal entanglements and interactions; (22) regional management; (23)
any management measures currently included in the FMP; and (24)
provisions relating to aquaculture projects.
The framework adjustment process involves the following steps. If
the Councils determine that an adjustment to management measures is
necessary to meet the goals and objectives of the FMP, they will
develop and analyze appropriate management actions over the span of at
least two meetings of each Council. The Councils will provide the
public with advance notice of the availability of the recommended
measures, justification for the measures, and all appropriate analyses,
such as economic and biological analyses. The Councils will allow the
public an opportunity to comment on the proposed framework adjustment
before and during the second Council meeting. After developing
management actions and receiving public comments, the Councils will
make a recommendation approved by a majority of each Council's members,
present and voting, to the Regional Administrator. Adjustments to the
FMP using the framework adjustment process will require the approval of
both Councils. The Councils' recommendation to the Regional
Administrator must include supporting rationale, an analysis of
impacts, and a recommendation to the Regional Administrator on whether
to publish the management measures as a proposed or final rule. The
Councils' recommendation is reviewed by NMFS, and NMFS will determine
whether the measures should be published or not. If NMFS does not
concur with the Councils' recommendation, the Councils will be notified
in writing of the reason for non concurrence.
Spiny Dogfish Monitoring Committee and Annual FMP Review
A Spiny Dogfish Monitoring Committee is established made up of
staff representatives of the Mid-Atlantic and New England Councils, the
NMFS Northeast Regional Office, the NMFS Northeast Fisheries Science
Center, and state representatives. The state representatives will
include any individual designated by an interested state from Maine to
Florida. In addition, the Monitoring Committee will include two non-
voting, ex-officio industry representatives (one each from the Mid-
Atlantic and New England Council regions). The Mid-Atlantic Council
Executive Director or a designee will chair the Committee.
The Spiny Dogfish Monitoring Committee will annually review the
best available data, as specified in 50 CFR 648.230, and recommend to
the Joint Spiny Dogfish Committee a commercial quota and, possibly,
other measures to assure that the target F specified for the
appropriate year in Sec. 648.230(a) for spiny dogfish is not exceeded.
These recommendations will be reviewed, and possibly modified, by the
Joint Spiny Dogfish Committee, which will then forward its
recommendations to the Councils. The Councils will consider the
recommendations of the Joint Spiny Dogfish Committee and then jointly
make their recommendations to the Regional Administrator. The Regional
Administrator will review the recommendations and, if necessary, may
modify the annual quota and other management measures to assure that
the target F will not be exceeded. The Regional Administrator may
modify the recommendations using any of the measures that were not
rejected by both Councils. NMFS will publish a proposed and final rule
in the Federal Register specifying a coastwide commercial quota and
other measures, if any, necessary to assure the appropriate F specified
in Sec. 648.230(a) will not be exceeded.
Permits for Vessels, Operators, and Dealers
Any vessel of the United States that fishes for, possesses, or
lands spiny dogfish in or from the exclusive economic zone (EEZ) must
have been issued and carry on board a valid commercial spiny dogfish
vessel permit. Individuals with commercial vessel permits may only sell
spiny dogfish, at the point of first sale, to a dealer who has a valid
dealer permit issued pursuant to this FMP.
Any individual who operates a vessel that is issued a valid Federal
commercial vessel permit for spiny dogfish must be issued an operator
permit. Any vessel fishing commercially for spiny dogfish will be
required to have at least one operator who holds an operator permit on
board. The operator is accountable for violations of the fishing
regulations, with penalties that may include a permit sanction. During
a permit sanction period, the individual operator may not work in any
capacity aboard a federally permitted fishing vessel.
Any dealer of spiny dogfish must be issued a Federal dealer permit
to receive spiny dogfish for a commercial purpose other than transport
from a vessel possessing a Federal commercial spiny dogfish permit.
Reporting Requirements for Vessels, Dealers and Processors
Owners or operators of vessels issued a Federal spiny dogfish
permit are required to submit vessel trip reports on a monthly basis.
These vessel trip reports are the same as those required under other
Federal FMPs in the Northeast Region.
Dealers with permits issued pursuant to regulations implementing
this FMP are required to submit weekly reports showing the quantity of
all fish purchased and the name and permit number of the vessels from
which the fish were purchased and to report purchases of spiny dogfish
through the Interactive Voice Response (IVR) system utilized for quota-
managed species in the Northeast Region. Dealers also are required to
report annually to NMFS certain employment data. These
[[Page 1560]]
requirements are the same as those established by other Federal FMPs in
the Northeast Region.
Other Measures
This rule authorizes the Regional Administrator to place sea
samplers aboard spiny dogfish vessels.
The total allowable level of foreign fishing is zero; therefore,
foreign fishing vessels may not fish for or retain any spiny dogfish.
Foreign fishing vessels may not fish for nor retain spiny dogfish.
The Regional Administrator, in consultation with the Executive
Directors of the Councils, may exempt any person or vessel from the
requirements of the regulations implementing the FMP in order to
conduct experimental fishing beneficial to the management of the spiny
dogfish resource or fishery. The exemption must be consistent with the
objectives of the FMP, the provisions of the Magnuson-Stevens Act, and
other applicable law. The exemption may not have a detrimental effect
on the spiny dogfish resource and/or fishery, cause any quota to be
exceeded, or create significant enforcement problems.
Comments and Responses
There were 124 written comments received from the public during the
comment period announced in the NOA of the FMP, which ended August 30,
1999. Many of the comments were submitted in support of the comments
offered by a coalition of several conservation groups including the
Center for Marine Conservation, the National Audubon Society, the
Environmental Defense Fund, the Ocean Wildlife Campaign, the Natural
Resources Defense Council, Fish Forever, and the American Oceans
Campaign. Other comments were submitted by the Massachusetts Division
of Marine Fisheries (MDMF), and law firms representing fishing industry
groups and non-fishing entities. All comments received prior to August
30, 1999, were considered in making the decision September 29, 1999, to
partially approve the FMP. All of these comments are addressed here.
There were three comments received after the close of the comment
period for the FMP but during the comment period of the proposed rule,
which closed September 17, 1999. The portions of these comments that
concern the implementation of the approved FMP measures in this final
rule are addressed here.
Comment 1: There were 122 commenters who requested NMFS to reject
the rebuilding target of 180,000 mt spawning stock biomass (SSB)
specified in the FMP. These commenters noted their support for a
rebuilding target of 200,000 mt SSB.
Response: The rebuilding target of 180,000 mt SSB was disapproved
by NMFS because it does not provide for rebuilding to maximum
sustainable yield as required by the Magnuson-Stevens Act. The best
available scientific information identified 200,000 mt SSB as the
appropriate biomass rebuilding target.
Comment 2: There were 122 commenters who expressed support for
specific measures in the FMP. The measures cited were the requirement
to close the fishery upon attainment of the semi-annual quota and the
prohibition on ``finning.''
Response: These measures were approved.
Comment 3: There were 122 commenters who indicated that the Spiny
Dogfish Monitoring Committee should be composed only of technical and
scientific members, without fishing industry representation because the
management process provides for public input through Council,
Committee, and Advisory Panel meetings.
Response: NMFS sees no legal basis to question the specific
membership of the Monitoring Committee. In addition, NMFS notes that
the two industry representatives will be non-voting, ex-officio
industry representatives (one each from the Mid-Atlantic and New
England Council regions). NMFS notes that the intent of the Councils in
including these representatives on the committee is to provide
information regarding the commercial fishery.
Comment 4: One commenter stated that the rebuilding target of
180,000 mt SSB is too high. The commenter contended that the rebuilding
target was determined subjectively using a Ricker dome-shaped stock/
recruitment (S/R) curve and that a Beverton model would be just as
appropriate to determine the rebuilding target.
Response: NMFS disapproved the rebuilding target of 180,000 mt SSB
contained in the FMP because it does not provide for rebuilding to
maximum sustainable yield as required by the Magnuson-Stevens Act. An
Overfishing Definition Review Panel was initially established by the
Councils to develop definitions of overfishing that conform with the
Magnuson-Stevens Act. The Spiny Dogfish Technical Committee, in
developing the FMP, adopted the definition that was developed by the
Overfishing Definition Review Panel. Both of these groups recommended a
rebuilding target of 200,000 mt SSB. Later, upon request by the
Councils, the joint Scientific & Statistical Committee (SSC) reviewed
and discussed the argument in favor of the Beverton model. The SSC
clearly indicated that the Ricker S/R model is appropriate for spiny
dogfish.
Comment 5: A commenter stated that the rebuilding schedule in the
FMP cannot be met without an effective control on discards of spiny
dogfish in fisheries targeting other species. The commenter asserts
that such discards will increase as the spiny dogfish stock rebuilds.
Response: The rebuilding schedule in the FMP presumes that the
proportion of mortality from discards will remain at current levels,
relative to landings, throughout the rebuilding period. The fishery
data indicate that a significant portion of dogfish discards occur in
the directed dogfish fishery, which does not retain dogfish that are
too small for purchase by processors. Since the FMP restricts the
directed fishery, it is presumed the discards from those participants
will decrease beginning in year 2 of the FMP. The Spiny Dogfish
Technical Committee projected that the rebuilding schedule can be
accomplished with minimal impacts on other fisheries. However, if
discards do increase significantly in fisheries targeting other
species, the Councils can develop measures to address discards through
the framework adjustment process or through an FMP amendment.
Comment 6: A commenter indicates that discards in the FMP are noted
as being approximately 4,445 mt, yet the rebuilding projection is
predicated upon discards of 80,000 mt. The letter requests that this
discrepancy be reconciled.
Response: The value of 4,445 mt was obtained using the average of
dogfish discards from 1995 - 1997 based upon sea sampled trips. The
estimate of 80,000 mt, which the commenter notes is embedded in the
rebuilding projection models, is obtained by subtracting 1997 dogfish
landings (approximately 20,000 mt) from the NMFS 1997 survey area-swept
biomass estimate multiplied by the 1997 exploitation rate (100,000 mt).
These values should not be used for comparison, primarily because of
how the survey area-swept biomass estimate is used in the dogfish
assessment (i.e., as an index of abundance), and because of some
uncertainty regarding estimates of discard mortality using sea-sampling
data.
The estimates of swept area biomass were used in a biological
projection model to assess the effects of various alternative
rebuilding strategies. The Technical Committee noted the strong
[[Page 1561]]
correlation between the magnitude of landings when the fishery was
directed for dogfish and the estimates of fishing mortality, and
concluded that reductions in fishing mortality (including discards)
should be proportional to the reduction in reported landings when
directed fishing was reduced. This conclusion implies that discards are
roughly proportional to, rather than independent of, the directed
fishery. The rebuilding strategies were evaluated using trajectories of
fishing mortality to attain the target biomass level. If the target
fishing mortality rates cannot be achieved due to ineffective controls
on discards, then the rebuilding strategy would need to be re-
evaluated. The selected rebuilding strategy utilizes a strong
assumption regarding the effectiveness of landings reductions to
rebuild the resource. Rebuilding strategies that assume no
proportionality between landings and discards would require more
stringent measures and, possibly, a longer rebuilding period.
SAW 26 (1998) discussed estimating dogfish discards using sea
sampling data and concluded that, at the time, it was not possible to
derive reliable annual estimates of dogfish discards for all major
gear/area/target species cells. There are some components of the
fishery in which dogfish discards occur, but are not accounted for in
the sea sampling data calculations. Sea sampling estimates are
provisional, and further work on discard rates and the magnitude of
total discard mortality is warranted. However, it is important to note
that overall dogfish discards are likely substantially lower now, than
in the period prior to 1994, owing to effort control strategies in a
number of fisheries that would normally encounter dogfish.
Comment 7: One comment was received concerning the Regulatory
Impact Review (RIR) portion of the FMP. The commenter was concerned
that minimal analysis was provided in the RIR to determine the economic
impact of implementing a very low quota in year 2 of the rebuilding
schedule. The commenter indicated that the FMP does not consider the
economic impacts of these quota levels, and contends the regulations
will shut down processors who depend upon large quantities of dogfish
to operate. The commenter also indicated that the analysis did not
fully consider the loss of markets overseas.
Response: The RIR indicates that in year 2 ex-vessel gross revenue
declines reach a high of $3,383,903, as landings are reduced to
2,901,780 lbs (1316 mt). Pack-out facility gross revenue declines are
also the greatest in year 2, estimated at $902,374. The FRFA concludes
that these impacts are significant. The FRFA also concludes that in
year 2, with an 89 percent reduction in landings (relative to status
quo), 39 percent of harvesters will realize a reduction in gross
revenue greater than 5 percent.
The FMP does acknowledge some uncertainty regarding the effects of
very low quotas upon markets. Since most spiny dogfish are currently
processed and exported, the implications of a very low total allowable
level of landings (TAL) upon both foreign and domestic markets is
difficult to predict. The RIR indicates that one of two scenarios is
likely to occur. The demand for spiny dogfish by foreign markets may
decline as this species is replaced by more readily available
alternatives, or conversely, a reduced dogfish supply in combination
with a static demand may cause increased dogfish prices and allow for a
limited fishery to exist at low landings levels. The FMP acknowledges
that the first scenario is more likely to occur, but the long-term
effect of a large decline in demand is unknown. The FMP further states
that the ability of processors and harvesters to re-establish export
markets, if they are lost during the rebuilding phase, is unknown.
Comment 8: Three commenters suggested that alternative management
strategies should be considered including establishment of a fishery
harvesting male dogfish only, landing limits (aside from size limits)
on mature females, area or seasonal closures, and gear alternatives.
Response: The Spiny Dogfish Committee considered a wide range of
alternatives, including those suggested by the commenters. Three of the
alternatives that were suggested by the respondents were specifically
included as management options by the Spiny Dogfish Committee during
the FMP development process, but were rejected and not considered to be
significant alternatives to the proposed rule.
On January 22, 1998, at the first meeting of the Joint Spiny
Dogfish Committee, a motion was unanimously adopted that the selective
harvest of males be removed as a management measure in the FMP.
Specific reasons for this decision were not provided in the Councils'
summary minutes, but the Committee did not consider the option to be a
significant feasible alternative at the time. After the FMP was
submitted, on April 21, 1999, the Committee suggested that a male-only
fishery be reexamined. The analysis of this option is not yet
available.
Area and seasonal closures were recommended by the Committee to be
included as management measures in the Public Hearing Document on
January 22, 1998. The Spiny Dogfish Technical Committee discussed these
alternatives, but reached a general consensus on May 8, 1998, that the
effects of area closures would vary greatly from year to year and would
be difficult to quantify due to spatial distribution and environmental
factors affecting spiny dogfish annual migration. Therefore, area and
seasonal closures were not considered to be a significant alternative
to the preferred alternative. In addition, NMFS notes that area
closures alone would, most likely, need to be very large and lengthy to
effectively achieve the large reduction in fishing mortality that is
specified in the FMP. Because of these reasons, the Councils chose not
to develop area closures for inclusion in the FMP.
The Joint Spiny Dogfish Committee and the Mid-Atlantic Council did
request that NMFS implement seasonal closures as interim measures in
January 1999. The New England Council did not support the request for
interim seasonal closures. NMFS ultimately denied the request for
interim seasonal closures, in part because existing multispecies area
closures were projected to reduce dogfish landings perhaps near the
level specified in the FMP.
Gear alternatives, primarily minimum mesh sizes, were considered
early in the FMP development process. The Committee discussed a minimum
mesh size at their first meeting on January 22, 1998. At that meeting,
the Committee voted to include minimum mesh size, gear restrictions,
and gear limits as management options. Later, Council staff indicated
on May 13, 1998, that there was very little available scientific
information on spiny dogfish gear selectivity. An industry advisor
indicated on May 12, 1998, that there should not be a minimum mesh
size. Use of a minimum mesh size would capture larger dogfish and allow
smaller dogfish to escape, thereby contradicting the need to protect
larger females to improve recruitment of the species. A minimum mesh
size is, therefore, not considered to be a significant alternative to
the preferred alternative. The Committee discussion on minimum mesh
size evolved into discussion on minimum fish size. A minimum fish size
was rejected as a preferred option by the Committee on June 8, 1998.
A limit of 80 nets for the gillnet fishery was identified as a
preferred alternative in the Public Hearing Document. This measure was
rejected by the Committee on December 2, 1998.
[[Page 1562]]
A landing limit, or quota, for mature females was not specifically
considered by the Committee. However, the Committee did reject the
selective harvest of males as an option, which is very similar. At the
time, the Committee did not believe that the selective harvest of males
could be implemented in a feasible manner.
If alternative harvest strategies prove to be feasible, the FMP
provides the Councils with framework and amendment processes to
implement them.
Comment 9: One commenter stated that the possibility of a fishery
targeting male dogfish was discussed at a public hearing, but was not
mentioned in the FMP as an option considered by the Councils.
Response: As discussed above, the Joint Spiny Dogfish Committee
considered the possibility of a male-only fishery, but did not
recommend that the Councils pursue it. A similar option was brought
forward, which would allow only the harvest of dogfish within a
particular size range of 27.5 to 32 inches (70 to 81 cm) (a so-called
slot size limit). This measure was discussed because it could protect
larger, mature female dogfish. However, a mechanism to implement a
``slot-limit'' was not identified. Unless gear could be devised to
prevent the capture of dogfish larger or smaller than the slot size,
such dogfish would be discarded and incur some level of mortality. The
results of a projected TAL under this scenario indicated that the
strategy would not shorten the rebuilding period. Thus, the potential
benefits under this management strategy are less than the preferred
alternative.
Comment 10: One commenter suggested that the management measures
should focus on trip limits and area closures, rather than relying upon
a quota to control the spiny dogfish harvest.
Response: The Joint Spiny Dogfish Committee and the Councils did
consider trip limits for the spiny dogfish fishery. They decided
against establishing a coastwide trip limit in conjunction with the
quota system. The analysis conducted by the Councils indicated that a
trip limit specified on an annual basis might be very low. The analysis
indicated roughly 5000 federally permitted vessels from Maine to North
Carolina. Assuming that each vessel makes 100 trips per year, and that
half of those trips land dogfish, there are approximately 250,000 trips
to distribute the quota between. For a quota of 1,316 mt, the
associated trip limit would calculated in this manner would be about 12
pounds (5.5 kg). Conceivably, a trip limit could be higher if the trip
limit were specified for a limited duration. At the time, the Committee
indicated that a trip limit established at one level for all vessels
may not ensure quota availability distributed across all areas, gear
types, and seasons.
As mentioned earlier, area closures were not considered to be a
significant alternative because the movement of dogfish make it
difficult to quantify the effects of closures on the dogfish harvest.
In all likelihood, to achieve the specified mortality reduction
that is necessary to rebuild the dogfish stock, a trip limit would have
to be very low and area closures would have to be large. Nevertheless,
the FMP does allow for these options (area closures and trip limits) to
be implemented under a framework action if the Councils choose this
management option in the future.
Comment 11: One commenter alleged that the Councils did not utilize
the best available scientific information in developing the FMP.
Response: NMFS disagrees. The FMP is based upon the best scientific
information available. Spiny dogfish were last assessed at SAW 26.
Also, the Council's joint SSC reviewed important spiny dogfish
information in 1999, including use of the Ricker stock-recruitment
function, alternative biomass rebuilding targets, and consideration of
ecosystem interactions in establishing the biomass rebuilding target.
Comment 12: One commenter stated that the absence of historical
data resulted in a poor proxy value that was used to establish the
biomass rebuilding target.
Response: NMFS disagrees. Data from 1970 through 1997 were used to
determine the stock/recruitment function and the average spawning
biomass at maximum sustainable yield (Bmsy) proxy. This
represents 27 years worth of data.
Comment 13: One commenter noted that the FMP indicates a recent
shift in dogfish landings from Federal waters to state waters. Because
the states, through the Atlantic States Marine Fisheries Commission
(ASMFC), do not have a management plan, the commenter expressed concern
that there would be an effect on the success of the FMP.
Response: This was recognized as a potential problem during
development of the FMP. As a result, the ASMFC has indicated its
intention to develop a spiny dogfish fishery management plan. The FMP
provides management for vessels that are permitted in the Federal spiny
dogfish fishery. The FMP indicates that landings of spiny dogfish shall
be prohibited by vessels possessing Federal spiny dogfish permits upon
attainment of the semi-annual quota. This prohibition affects catches
of dogfish in state waters by federally permitted vessels because there
is an underlying provision that requires Federal permit holders to
comply with Federal regulations regardless of where their fishery
operations occur. Agreeing to comply in this manner is a condition
precedent to obtaining a Federal fisheries permit. It enhances the
enforceability of the Federal regulations and plays an important role
in achieving the goals of the Magnuson-Stevens Act. The FMP also
contains an annual framework mechanism that will enable the Council to
adjust the spiny dogfish quota to ensure that the fishing mortality
rate specified in the FMP will not be exceeded. The level of landings
from state waters can be considered when establishing the annual quota.
Comment 14: One commenter stated that the analysis of the economic
impact of the status quo option (no management measures) is overstated.
Response: NMFS disagrees. Because recent recruitment has been very
poor, stock projections indicate that if there are no management
measures for the dogfish fishery, landings will continuously decline at
current levels of fishing effort. Fishing at this level will lead to
recruitment failure and, eventually, stock collapse. As landings
decline, annual ex-vessel revenues from dogfish are projected to
decline correspondingly. This was the basis for the economic analysis
of the status quo option.
Comment 15: One commenter expressed concern regarding the inclusion
of two measures on the list of measures that could be implemented by
framework action: (1) The description and identification of essential
fish habitat (EFH), and (2) the description and identification of
habitat areas of particular concern (HAPC). The commenter is concerned
that the framework process would allow changes to these measures to be
published as a final rule, without publication first as a proposed
rule. The commenter states that nonfishing interests lack
representation at Council meetings and, therefore, will not have the
opportunity to comment upon actions regarding EFH. The commenter also
asserts that the framework adjustment process for these two measures
will create inconsistencies in the measures among different NMFS
Regions and the Councils, thereby complicating the EFH consultation
process. The commenter
[[Page 1563]]
requests that the inclusion of these measures be delayed until NMFS EFH
interim final regulations and guidelines are revised.
Response: The framework adjustment process requires the Councils,
when making specifically allowed adjustments to the FMP, to develop and
analyze these actions over the span of at least two Council meetings.
The Councils must provide the public with advance notice of the
meetings, the proposals, and the analysis. Publication of the meeting
agenda in the Federal Register is required. The public is provided an
opportunity to comment on the proposals prior to, and at, the second
Council meeting. Upon review of the analysis and public comments, the
Council may recommend to the Regional Administrator that the measures
be published as a final rule if certain conditions are met. NMFS may
either publish the measures as a final rule, or as a proposed rule if
NMFS or the Council determines that additional public comment is
needed.
The list of frameworkable measures included in the FMP and the
final rule to implement the FMP is inclusive to give the Councils
maximum flexibility to respond quickly to fishery information as it
becomes available and to adjust the regulations accordingly. As such,
modifications to EFH and HAPC can be implemented in a expedited manner
if circumstances warrant, based upon Council and NMFS approval. The
framework adjustment process requires adherence to all applicable law,
and a framework adjustment requires full analysis to evaluate the
impact of the measures. The degree of the required analysis will differ
for each framework adjustment, depending upon the scope of the action
and the degree to which the impacts have been previously analyzed.
Comment 16: One commenter considered the definition for spiny
dogfish EFH to be too broad, vague, and unworkable. The commenter
specifically cited the breadth of EFH designation, noting that EFH
appeared to be designated over the range of the species, and in
estuarine and coastal waters of the states.
Response: The Magnuson-Stevens Act defines EFH as those waters and
substrate necessary to fish for spawning, breeding, feeding, or growth
to maturity. Therefore, the geographic scope of EFH must be
sufficiently broad to encompass the biological requirements of the
species. The information that the Councils used for EFH designation was
primarily species distribution and relative abundance data, which would
be classified as ``level 2'' information under the EFH regulations (50
CFR 600.815). Since the information available was not more specific
(e.g., did not show species production by habitat type), the approach
prescribed by the regulations led to fairly broad EFH designations. The
EFH regulations at 50 CFR 600.10 interpret the statutory definition of
EFH to include aquatic areas that are used by fish, including
historically used areas, where appropriate, to support a sustainable
fishery and the managed species' contribution to a healthy ecosystem,
provided that restoration is technologically and economically feasible.
The Councils' EFH designation for spiny dogfish is consistent with
these requirements.
The specific methodology used by the Councils for designating EFH
was based on the highest relative density of spiny dogfish. This
methodology was developed by scientists at the NMFS Northeast Fisheries
Science Center, and is supported by scientific research and ecological
concepts that show that the distribution and abundance of a species or
stock are determined by physical and biological variables. The
abundance of a species is higher where conditions are more favorable,
and this tends to occur near the center of a species' range. As
population abundance fluctuates, the area occupied changes. At low
levels of abundance, populations are expected to occupy the habitat
that maximizes their survival, growth, and reproduction. As population
abundance increases, individuals move into other available habitats.
NMFS and the Council have developed a management regime designed to
increase the population of spiny dogfish. The broad EFH designation for
spiny dogfish is intended to include habitat essential for the species'
long-term well-being.
Comment 17: One commenter objects to the provision that requires
Federal spiny dogfish vessel permit holders to comply with Federal
regulations when fishing in state waters.
Response: This longstanding provision applies to all regulated
fisheries in the Northwest Atlantic Ocean. It operates as a condition
precedent to getting a Federal fisheries permit. Anyone who elects to
obtain a Federal fisheries permit must agree to abide by the Federal
regulations regardless of where fishing operations are conducted. This
condition enhances the enforceability of the Federal regulations and
plays an important role in achieving the goals of the Magnuson-Stevens
Act. This requirement has been effect in other fisheries for nearly 20
years. See also the response to Comment 13.
Comment 18: One commenter indicated that NMFS should be more
accurate regarding the assessment of impacts of the rebuilding schedule
and low TALs on the dogfish industry. Specifically, the commenter
objects to the statement that low TALs may cause processors to stop
processing dogfish and may cause markets for the species to collapse.
Response: The RIR and the Regulatory Flexibility Analysis conducted
for this action indicate two possible scenarios. First, markets for
dogfish could be completely lost or, second, other market opportunities
could develop. It is acknowledged that the first scenario is the most
likely. However, the low TALs during the rebuilding period could
possibly support a processing sector that is different from the current
industry. For this reason, the RIR does not definitively indicate that
processors will cease dogfish processing.
Comment 19: One respondent suggested that the definition of a
sustainable fishery (in tonnage) should be provided.
Response: The FMP states that a rebuilt stock will allow for a
sustainable fishery at yield levels of approximately 14 million pounds
(6250 mt) per year.
Comment 20: One commenter asked for clarification of the meaning of
``fishing for spiny dogfish'' and asks if the FMP will allow harvesters
to bring dogfish aboard a vessel.
Response: According to the Magnuson-Stevens Act, fishing means any
activity, other than scientific research conducted aboard a scientific
research vessel, that involves: (1) The catching, taking, or harvesting
of fish; (2) the attempted catching, taking, or harvesting of fish; (3)
any other activity that can reasonably be expected to result in the
catching, taking, or harvesting of fish; or (4) any operations at sea
in support of, or in preparation for, any activity described in (1),
(2), or (3) of this definition. These regulations will prohibit any
individual from possessing or landing spiny dogfish harvested from the
EEZ if their vessel is not issued a Federal spiny dogfish permit. Any
vessel with a Federal spiny dogfish permit will be prohibited from
fishing for or possessing spiny dogfish harvested in or from the EEZ,
and prohibited from landing spiny dogfish, after the effective date of
notification in the Federal Register stating that the semi-annual quota
has been harvested and the fishery is closed. It is recognized that a
vessel may inadvertently encounter dogfish and may have them on board
during the process of discarding them. It is a matter for law
enforcement authorities to
[[Page 1564]]
determine the circumstances when such fish are possessed in violation
of the regulations.
Comment 21: Two commenters questioned whether NMFS met its
obligations under National Standard 8 to, in its words, ``consider the
importance of fishing resources to the fishing community and select the
alternative that minimizes the adverse economic impact on the
community.'' The commenters cite the high percentage of spiny dogfish
landings out of total fish landings in Plymouth, MA (96%),
Wachapreague, VA (91%), and Scituate, MA (74%), as evidence of what it
terms the ``high dependency'' of those communities on spiny dogfish
harvesting. The comments also suggest that New Bedford, MA, is highly
dependent on spiny dogfish processing, because it processes a high
percentage of spiny dogfish landings.
Response: National Standard 8 states that ``[c]onservation and
measures shall, consistent with the conservation requirements of this
Act (including the prevention of overfishing and rebuilding of
overfished stocks), take into account the importance of fishery
resources to fishing communities in order to (A) provide for the
sustained participation of such communities, and (B) to the extent
practicable, minimize adverse economic impacts on such communities.''
The commenter's suggestion that NMFS must choose the alternative that
has the least impact on communities does not comport with National
Standard 8. After extensive public input, the Council chose and
recommended to NMFS, and NMFS approved and is implementing, an
alternative that reduced economic impacts to the extent practicable
while meeting the conservation requirements of the Magnuson-Stevens Act
to stop overfishing and rebuild the overfished stock, and providing for
long-term economic gains. The FMP states that the impacts associated
with rebuilding the stock will be more severe if rebuilding is delayed.
Nonetheless, recognizing the impacts of this FMP, the Council worked
closely with both harvesters and processors to include an ``exit
fishery'' in the FMP, as implemented by these regulations, to allow the
industry time to modify its activities before the landings were reduced
by the rebuilding program. At the same time, the Council decided, based
on stock condition of spiny dogfish (low abundance of males and
females, especially females of spawning age and those soon to reach
maturity), that an exit fishery lasting longer than a year was ill-
advised and that harvest of spiny dogfish needed to be reduced
drastically by year 2 to protect females nearing maturity.
NMFS recognizes that some participants in the commercial fishing
industry, namely, some fishermen and some processors, will be adversely
affected by the conservation measures in the FMP in the short-term.
NMFS also recognizes that some smaller communities involved in the
dogfish fishery might be disproportionately affected by the
conservation measures. The Council has made these points very clear in
the FMP. While individual processing plants and fishing vessels may
process or harvest spiny dogfish exclusively, none of the communities
mentioned are engaged in the spiny dogfish fishery to meet social and
economic needs of the community. Two of the communities, Plymouth and
Scituate, are part of the suburban areas of a large city and are
dependent on and substantially engaged in the businesses of the
metropolitan area, as bedroom communities and tourist areas. The other
community, Wachapreague, has significant fishing activities, both
commercial and recreational fishing, but also attracts retirees and
tourism, and is substantially dependent on these two sectors for
economic activity. New Bedford is a fishing community with about 25
vessels landing dogfish and a processing plant handling catches from
these vessels and other ports. The multispecies nature of the fishing
industry in New Bedford and the diversification of the other
communities' economies in non-fishing activities is such that closing
the directed fishery for spiny dogfish would affect these communities
only to a degree.
Comment 22: One commenter stated that dogfish are abundant and that
biomass is at or near its historic high, implying that rebuilding is
not necessary.
Response: The total dogfish biomass is currently comparable to
recent high levels of abundance. However, the current age structure has
been seriously distorted by the selective removal of mature females by
the fishery. Because of the lack of mature females, recruitment is low
and the stock will collapse if no action is taken. The management
measures in the FMP will reduce fishing mortality rates to allow the
population to return to equilibrium at a lower level of abundance than
is currently observed. Preliminary projections, calculated with a
spawning stock biomass of 200,000 mt, indicate that the total long-term
biomass of a sustainable dogfish fishery would be about 416,000 mt,
which is actually lower than the current total biomass of 515,513 mt.
Comment 23: One commenter expressed concern that the 5-year
rebuilding plan and the 180,000 mt SSB rebuilding target in the FMP
were not given adequate consideration during the public hearing
process. The commenter stated that the 180,000 mt SSB rebuilding target
was adopted by the Councils despite the fact that the SSC had
previously stated that 200,000 mt SSB was the appropriate rebuilding
target.
Response: NMFS has disapproved the 180,000 mt SSB rebuilding
target, because it does not comply with the Magnuson-Stevens Act.
Comment 24: One commenter stated that the Councils failed to
consider the impacts of a rebuilt dogfish stock on other managed
fisheries, especially with regards to predation and other ecosystem
interactions.
Response: NMFS disagrees. The Councils specifically requested the
SSC to evaluate estimates of Bmsy for spiny dogfish within an
ecological context. The SSC found no compelling reason to consider
predation by spiny dogfish on other commercially valuable groundfish in
determining its Bmsy. The SSC indicated that changing the SSB
rebuilding target to as low as 150,000 mt would not significantly
effect predation on groundfish and have a minimal effect on groundfish
rebuilding. The stock of spiny dogfish is a very small part of the
ecological community, and because of its opportunistic predatory habits
it may have minimal direct and indirect effects on the relationships of
different species. It was recognized that dogfish do have some effect
on other species through predation and competition. However, the SSC
stated that trying to determine pairwise relationships between one
species and a series of others is currently not feasible.
Comment 25: Several commenters requested NMFS to keep track of
landings to see if 10,000 mt is exceeded in the first year.
Response: NMFS will monitor the quota, as required by the FMP.
However, NMFS notes that for the period May 1-February 10, 2000
monitoring may be incomplete because the mandatory reporting provision
will not be in place. NMFS must also rely on state agencies for data
from state water fisheries.
Changes From the Proposed Rule
In the definition for Spiny Dogfish Monitoring Committee, minor
editorial changes have been made for clarity.
In Sec. 648.4(a)(11) wording has been added to clarify that permits
are
[[Page 1565]]
required for vessels fishing commercially.
In Sec. 648.4(b) wording has been added to clarify that
restrictions on landings take effect as of the effective date of the
notification of a fishery closure in the Federal Register.
In Sec. 648.5(a) a reference to the recently published 50 CFR part
697 has been added to indicate that operator permits issued under that
part satisfy the permitting requirements of this section.
In the final rule, two sentences in Sec. 648.6(a) have been
combined for the purpose of brevity. References to regulations not yet
in effect have been deleted.
In Sec. 648.7(b), the paragraph headings for paragraph (b) and
(b)(1)(i) have been revised to reflect that both owners and operators
are responsible for reporting.
In Sec. 648.11, paragraph (b) is revised to be consistent with the
language in paragraph (a) that clarifies that vessels chosen to carry
sea samplers/observers are required to do so, unless exempted by the
Regional Administrator. The original language in paragraphs (a) and (b)
used the word ``request'' even though each paragraph as a whole
indicated that carrying sea samplers was a requirement, not an option.
Additional editorial corrections have been also made.
Sec. 648.14(a)(119), the phrase ``the owner or operator of a
vessel'' has been changed to ``any person on board a vessel'' to make
it clear that it is illegal to receive spiny dogfish from anyone on
board a vessel with a spiny dogfish permit unless the purchaser/
receiver has a spiny dogfish dealer permit.
Sec. 648.14(aa)(2), the prohibition on vessels from possessing
spiny dogfish harvested from the EEZ after the date by which the semi-
annual quota has been harvested and on which the EEZ is closed to the
harvest of spiny dogfish, as announced in a notification published in
the Federal Register has been revised to also prohibit fishing for
spiny dogfish after that date. This is to better reflect the intent of
the FMP. There are additional editorial corrections made within the
section.
In Sec. 648.230, the term ``the Regional Administrator'' has been
replaced with ``NMFS'' to indicate that the agency as whole is
responsible for review and publication of the regulations. Other, minor
editorial corrections are also made.
In Sec. 648.230(b), the portion of a sentence that specified the
semi-annual quota periods has been deleted, because that information is
specified in Sec. 648.230(d)(1).
In Sec. 648.230(b) and (c), the paragraphs have been revised to be
consistent with the final sentence in Sec. 648.230(c), which makes it
clear that the Monitoring Committee and the Joint Spiny Dogfish
Committee are to recommend a quota and other measures necessary to
assure that the fishing mortality rate specified in the FMP and
Sec. 648.230(a) for the upcoming fishing year will not be exceeded. The
language is also revised to note that management measures listed in
paragraph (b) are not restricted to those shown.
In Sec. 648.230(c), the final regulations now specify that the
Joint Spiny Dogfish Committee is a joint committee of the Councils. The
portion of a sentence that specified the semi-annual quota periods has
been deleted, because this information is already specified in
648.230(d)(1). The last four sentences are revised to clarify the
Councils' and NMFS responsibilities in establishing annual fishing
measures.
In Sec. 648.230(d)(2), the paragraph has been revised to remove
closure procedures and effects from the paragraph because that
information is specified in Sec. 648.231.
In Sec. 648.231, the paragraph has been revised to clarify closure
procedures and to more accurately indicate the prohibited activities
during a closure. Prohibited activities include fishing for or
possessing spiny dogfish in the EEZ, landing spiny dogfish by vessels
issued a Federal spiny dogfish permit, and purchasing spiny dogfish
from vessels issued a Federal spiny dogfish permit by dealers issued a
Federal dogfish dealer permit. These have been standard prohibitions
for closures in Federal fishery regulations.
Other changes from the proposed rule have been made at
Secs. 648.1(a), 648.2, 648.4(a), 648.12, and 648.14 to reflect changes
necessary because of the monkfish final rule becoming effective between
the dates of publication of the proposed and final spiny dogfish rules.
Minor editorial changes have been made in Secs. 648.231 and
648.237.
Throughout the regulations references to bluefish, for which the
regulations are not yet effective, have been deleted.
Classification
The Administrator, Northeast Region, NMFS, determined that the FMP,
except for the disapproved measure, is necessary for the conservation
and management of the spiny dogfish fishery and that it is consistent
with the Magnuson-Stevens Act and other applicable laws.
The Councils prepared a FEIS for this FMP. The EPA published a
notice of availability (NOA) for the Draft EIS at 63 FR 54476, October
9, 1998, and a NOA for the FEIS at 64 FR 45541, August 20, 1999. A
notice of availability for the FMP, which contains the FEIS, was
published at 64 FR 34759, June 29, 1999. The management measures will
have long-term positive impacts on the affected human environment.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
The proposed rule to implement the FMP was published in the Federal
Register on August 3, 1999, (64 FR 42071). A copy of the IRFA analysis
is available from the Councils (see ADDRESSES). The Final Regulatory
Flexibility Analysis (FRFA) incorporates the IRFA and its findings, the
responses to public comments that mentioned possible effects of the FMP
on small entities, and the following discussion, which is based on the
IRFA. No changes were made in response to comments on the economic
impact of the rule.
Domestic landings of spiny dogfish increased rapidly from 1989
through 1996, but began a decline in 1997. In 1998 NMFS declared the
stock to be overfished. Without any management measures (status quo),
landings in 2001 would be expected to decline to 21.3 million lb (9,662
mt), which is less than half of what they were in 1997. Projections
indicate that an unregulated dogfish fishery would deplete the adult
spawning portion of the stock by about 85 percent in 10 years. Landings
would be expected to decline continuously due to the overfished
condition of the stock. Nominal spiny dogfish ex-vessel revenues are
correspondingly projected to decline. Eventually, the spawning stock
would decline to a level that would lead to recruitment failure and
stock collapse. Due to the slow growth and low fecundity of spiny
dogfish, it would then take decades to rebuild the stock. The
continuation of an unregulated fishery for spiny dogfish is, therefore,
contrary to the Magnuson-Stevens Act, which requires remedial action
through appropriate management measures for species designated as
overfished. This final rule implements measures for spiny dogfish to
prevent overfishing, rebuild the stock, and comply with other
provisions of the Magnuson-Stevens Act.
The categories of small entities likely to be affected by this
action are commercial vessel owners harvesting spiny dogfish and
dogfish processors. The IRFA estimates that this action is expected to
affect 595 vessels and 3 processors that meet the criteria for small
entities.
[[Page 1566]]
Impacts of Permitting and Reporting Requirements
Under all of the alternatives, any vessel fishing commercially for
spiny dogfish must have a valid open access Federal spiny dogfish
vessel permit issued by NMFS. It is estimated that 87 percent of the
595 commercial vessels landing spiny dogfish in 1997 from Federal
waters already possess a NMFS permit for at least one or more fisheries
other than spiny dogfish. Therefore, the other 13 percent
(approximately 77 vessels) will be required to apply for a Federal
spiny dogfish vessel permit using the initial application form. The
remainder will use the renewal form and will not likely incur an
additional burden. It is estimated that the owner/operators of all 77
vessels will apply for a spiny dogfish permit. The burden costs to the
public for the permit application consist only of the time required to
complete an application (.5 hr), at a hourly rate of $15/hour. The
total burden cost to the public will be $578 ($7.50 per vessel X 77
vessels).
The expected burden cost to the public for commercial logbook
submissions will be $1,540 ($20 per vessel per year X 77 vessels).
In addition, the operators of these 77 vessels will be required to
apply for a Federal spiny dogfish operator permit using the initial
application form. The remainder would use the renewal form and will not
likely incur an additional burden. The burden costs to the public for
the operator permit consist only of the time required to complete an
application (1 hr), at a hourly rate of $15/hour. The total burden cost
to the public will be $1,155 ($15 per operator X 77 operators).
It is expected that there will be approximately 15 new applicants
for dealer permits. The cost to the public for dealer permits will be
$18.75 ($1.25 per applicant X 15 applicants). Thereafter, the public
annual estimate of submitting weekly reports will be $26 per dealer per
year. Thus, total cost for all new dealers (who do not currently have
permits) for permitting requirements in the first year is $409 ($1.25 +
$26 X 15 dealers).
Non-Preferred Alternative to Permitting and Reporting Requirements
The alternative to the permitting and reporting requirements is the
status quo, or no regulation. Without these requirements, a Federal
quota system would be unmanageable, as landings information would not
be complete and closures would be unenforceable. Because the status quo
option would not meet the requirements of the Magnuson-Stevens Act,
this alternative was rejected.
Impacts of Prohibition on Finning
This rule prohibits the practice of finning spiny dogfish (cutting
off and retaining the fins and discarding the carcass). Fishing
industry representatives testified that this practice occurs only under
extremely limited circumstances in the fishery; therefore, the
prohibition would have a negligible effect on the current fishery. The
provision is designed to prevent the practice in a reduced fishery and,
thereby, reduce waste of the spiny dogfish resource.
Non-Preferred Alternative to Prohibition on Finning
The alternative to the prohibition of finning is the status quo, or
no regulation. The practice is already banned in other shark fisheries
in the management area; therefore, not having a prohibition in this
fishery could complicate enforcement by allowing fishermen to claim
that fins from other sharks were from dogfish. Due to the strong
support for prohibiting finning from all sectors and the insignificant
economic effects of the prohibition, the status quo alternative was
rejected.
Impacts of the Preferred Spiny Dogfish Rebuilding Schedule
The impacts of the preferred rebuilding schedule were analyzed
presuming a 180,000 mt rebuilding target. While this rebuilding target
has been disapproved, the management program remains intact. The
analyzed impacts are still relevant in the near-term, and will be
updated as necessary when the Councils submit a revised rebuilding
target.
The intent of the Councils is to rebuild the spawning stock biomass
of the spiny dogfish stock to levels that will support the fisheries at
long-term, sustainable levels. The preferred rebuilding schedule
identified in the FMP is expected to eliminate overfishing and rebuild
the spiny dogfish stock in the shortest possible time, while still
allowing for a 1-year ``exit fishery.'' The 1-year ``exit fishery'' of
22 million lb (10,006 mt) includes 9,286,935 lb (4212.5 mt) for the
semi-annual period from November 1, 1999 - April 30, 2000, and will
allow participants to gradually reduce their activity in the directed
spiny dogfish fishery. This approach was chosen to reduce the impacts
of the rebuilding program on both the harvesting and processing sectors
of the industry, during the first 6 months. Beginning May 1, 2000,
landings will be reduced to 2.9 million lb (1,316 mt) and then
maintained at under 4.4 million lb (2,000 mt) until the target biomass
is reached. The analysis for the preferred alternative presented here,
and in the FMP, was developed with an assumption that the fishery would
rebuild in 2004.
Based upon projected status quo landings in relation to proposed
total allowable commercial landings or TALs, ex-vessel gross revenue
declines would reach a high of $3,383,903 in year two as landings are
reduced to 2,901,780 lb (1,316 mt). Pack-out facility gross revenue
declines would be the greatest ($902,374) in year two. Gross revenue
losses after year two would then decline as projected landings under
the preferred alternative increase, while landings under the status quo
model decrease. Nominal gross ex-vessel revenues would exceed status
quo ex-vessel revenues in 2004, assuming that rebuilding is achieved.
Cumulative ex-vessel revenues would exceed status quo in 2016. More
appropriately, cumulative gross ex-vessel revenues in real terms at a 7
percent discount rate would only exceed status quo in 2029.
In year one of the preferred rebuilding schedule, there would be a
30-percent reduction in landings compared with the status quo levels.
This reduction would cause a decrease in gross revenues of greater than
5 percent for approximately 149 vessels (using 1997 dealer and weighout
data) and for 2 processors. In year two, with an 89-percent reduction
in landings (relative to the status quo levels), 232 harvesters would
have a gross reduction of revenues greater than 5 percent (based on
1997 landings and dealer data). The IRFA also concluded that it is
possible that the action will result in at least 12 spiny dogfish
harvesters ceasing operations.
Processors have indicated that their ability to process spiny
dogfish in a cost-effective manner is dependent upon volume. This
action, which greatly reduces landings during the rebuilding period,
could, therefore, result in the elimination of dogfish processing
operations for the remaining 3 dogfish processors and the potential
loss of approximately 200 jobs.
An area of uncertainty is the effect of low TALs upon markets. The
low TALs may cause processors to cease processing spiny dogfish and
cause established U.S.-based markets for this species to collapse.
Since most spiny dogfish are currently processed and exported, the
implications of this action upon both foreign and domestic markets are
hard to predict. The demand for spiny dogfish by foreign markets may
[[Page 1567]]
decline as dogfish is replaced by a more readily available alternative,
or, conversely, reduction of supply in combination with static demand
could cause dogfish prices to rise and allow for a limited fishery to
exist with landings at low levels. Industry members indicate that
demand is likely to decline. The ability of processors and harvesters
to re-establish markets, if they ceased operations earlier, is unknown.
If markets for spiny dogfish cease, there would be no processors to
whom harvesters could sell their catch. Conversely, if prices rise,
harvesters would be able to receive higher ex-vessel prices for spiny
dogfish (assuming a market exists). Even if prices increase, due to the
extremely low TALs, it would probably not mitigate the economic impacts
on the processors and harvesters caused by the preferred alternative.
Given low TALs, the harvesting, processing, and support industries are
not likely to see cumulative benefits for at least 15 years.
While the short and intermediate effects of the FMP are negative
for those involved in the fishery, the long-term effects are likely to
be positive. Projections indicate that an unregulated dogfish fishery
would deplete the adult spawning portion of the stock by about 85
percent within 10 years. This would lead to a stock collapse. Yields
would be expected to plummet, and a rebuilding program after a stock
collapse is projected to take decades, due to the life history of
dogfish. This action will rebuild the adult spawning stock biomass and,
then, allow for a sustainable fishery in future years.
Impacts of Alternatives to the Preferred Rebuilding Schedule Considered
but Rejected
Other alternatives to the preferred rebuilding schedule were
considered, but either did not meet the requirements of the Magnuson-
Stevens Act, or did not provide long-term economic benefits greater
than those of the proposed action.
Non-Preferred Alternative Rebuilding Schedule 1 would reduce
landings to a consistent level of approximately 5.5 million lb (2,500
mt) until 2003 when the stock is assumed to be rebuilt, and landings
reach a level of 14 million lb (6,350 mt). Relative to status quo,
gross revenue declines would reach a high of $3,067,000 in year two
(2000). Cumulative gross revenues would exceed status quo levels in
2015. Similarly, relative to status quo, gross revenue declines for
pack-out facilities would reach a high of $817,000 in year two (2000).
Impacts would then decline afterwards as projected landings increase.
At approximately 5.5 million lb (2,500 mt), a directed fishery for
spiny dogfish is unlikely, and as noted in discussing the preferred
alternative, the effect that an incidental dogfish fishery would have
on markets is difficult to predict. This option would not provide for a
1-year ``exit'' fishery; therefore, it would have imposed greater
economic burdens on fishery participants in the short term. In
addition, this alternative's long-term economic benefits would not
exceed those of the preferred alternative.
Non-Preferred Alternative Rebuilding Schedule 2 would reduce
landings to 22.5 million lb (10,206 mt) in year one, to 11.3 million lb
(5,125 mt) in year two, and then limit landings to a level that would
ensure the rebuilding of the stocks within a 10-year time-frame.
Relative to status quo, gross revenue declines would reach a high of
$2,778,962 in year three (2001). Cumulative gross revenues would exceed
status quo levels in 2020. Similarly (also relative to status quo),
gross revenue declines for pack-out facilities would reach a high of
$741,056 in year three (2001). Impacts would then decline afterwards as
projected landings increase. Unlike the preferred alternative, this
alternative does not provide for a rebuilt stock until 2009. Similarly,
although the second year of this option provides for a higher TAL than
the preferred, the long-term economic outlook for the preferred
alternative is superior. Given the higher TAL in year two of this
option, there is a possibility that, in the short-term, this option
could provide some cost savings by not forcing harvesters into other
fisheries as quickly as the preferred alternative. However, the cost
data needed to support this conclusion are currently unavailable. The
analysis examined gross revenues, and the long-term benefits of the
preferred alternative exceeded this alternative.
Non-Preferred Alternative Rebuilding Schedule 3 would allow for a
reduction in dogfish landings to 13.2 million lb (5,988 mt) in 1999 and
8.8 million lb (3,992 mt) in 2000. Landings until 2004 would be reduced
to a level which allows the stock to be rebuilt in 5 years. Year one
gross ex-vessel revenue declines would be $2,631,447 and reach a high
of $2,697,000 in year three (2001), compared to the status quo revenue
levels. These impacts would decline throughout the time-span of the FMP
as projected landings increase. Cumulative gross revenues would exceed
status quo levels in 2015. This alternative would not provide for an
economically feasible exit fishery compared to the preferred
alternative; therefore, it was not favored by members of the fishing
industry. In addition, this alternative's long-term economic benefits
do not exceed those of the preferred alternative.
Alternatives four, five, and six would reduce F to levels that are
necessary to rebuild spiny dogfish stocks within a 15-, 20-, and 30-
year time frame, respectively. These options were rejected early in the
FMP development process because the analysis indicated that spiny
dogfish did not meet the necessary Magnuson-Stevens Act criteria that
allow rebuilding to exceed 10 years. These options would spread
economic impacts over a greater time period, but would not meet the
requirements of the Magnuson-Stevens Act.
Alternative seven would establish a system of uniform trip limits
in conjunction with an annual quota. In the second year of the
rebuilding program, the projected trip limits per vessel could
potentially be as low as 12 lb (5.4 kg) per trip, assuming a TAL of 2.9
million lb (1,315 mt) and 250,000 trips. Given that the average
commercial fishing trip in 1997 landed 3,116 lb (1,413 kg), this low
trip limit would preclude a viable directed fishery. There could be
fewer participants involved in the commercial spiny dogfish fishery, an
occurrence that would allow for larger trip limits. However, a uniform
trip limit system would not necessarily ensure quota availability
distributed across all geographic areas, gears, and seasons. This
management option was rejected because positive long-term benefits
would be limited.
Alternative eight would establish a minimum size limit for spiny
dogfish that corresponds to the length at which 50 percent of female
spiny dogfish are sexually mature (32 in (81 cm)). Alternative nine
would establish a minimum size limit for spiny dogfish that corresponds
to the length at which 100 percent of female spiny dogfish are sexually
mature (36 in (91 cm)). These alternatives would have little economic
impact on recreational fishing because most recreationally caught spiny
dogfish are released after capture. However, there would likely be
negative short-term economic impacts on the commercial harvesting
sector through reduced landings because very few dogfish harvested by
commercial fishermen currently achieve the proposed minimum sizes.
These negative economic impacts would likely extend to processors and
dealers because of reduced landings of spiny dogfish.
[[Page 1568]]
Alternative ten would allow only the harvest of spiny dogfish
between 27.5 in (70 cm) to 32 in (81 cm) in length (a ``slot size''
limit). The results of projected TALs under this scenario indicate that
this strategy would result in lower overall yields and not in reducing
the rebuilding period. Thus, the potential benefits under this scenario
would be less than the preferred alternative for the same time period.
The eleventh and twelfth alternatives would distribute the annual
quota on a quarterly or bi-monthly basis. The effects of these
alternatives would depend largely upon the distributional system set up
by the Councils. The further sub-allocation of quotas could provide
long-term benefits through a rebuilt spiny dogfish fishery. As the
industry is presently structured, there are insufficient fish to make
processing operations (which depend on volume) economically viable.
Additionally, administrative logistics associated with implementing a
quarterly or bimonthly quota monitoring system are expected to be
formidable. For these reasons, these alternatives were rejected.
Steps Taken to Minimize the Significant Impact on Small Entities
Several steps have been taken to minimize the economic impact on
small entities. First, the primary means of initially minimizing the
effect of this action on small entities was to provide the 1-year
``exit fishery'' to allow participants to gradually reduce their
activity in the first year of the plan. Second, the semi-annual quota
allocates the catch to minimize the impact on any one portion of the
fishery. Third, the FMP and regulations incorporate a wide range of
framework actions that will allow the Councils and NMFS to tailor the
fishery to minimize impacts on small entities over the life of the FMP.
Finally, the rebuilding strategy for the fishery protects a large class
of juvenile female spiny dogfish to allow them to mature and contribute
to the stock quickly, as opposed to a rebuilding strategy that could
take decades if that large class of juvenile females was not protected.
A copy of this analysis is available from the Councils (see
ADDRESSES).
Paperwork Reduction Act (PRA)
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a person be subject to, a penalty for failure
to comply with a collection of information subject to the requirements
of the PRA unless that collection of information displays a currently
valid Office of Management and Budget (OMB) control number.
This final rule contains eight new collection-of-information
requirements subject to the Paperwork Reduction Act. The collection of
this information has been approved by OMB, and the OMB control numbers
and public reporting burden are listed as follows:
Processed Products Family of Forms, OMB Control Number 0648-0018,
(2 minutes/response).
Northeast Region Federal Fisheries Permit Family of Forms, OMB
Control Number 0648-0202 (vessel permit - 30 minutes/response; dealer
permit - 5 minutes/response; operator permit - 1 hour/response).
Northeast Region Logbook Family of Forms, OMB Control Number 0648-
0212 (5 minutes/response).
Northeast Region Dealer Purchase Reports, OMB Control Number 0648-
0229 (IVR - 4 minutes/response; form 88-30 - 2 minutes/response).
Northeast Region Vessel Identification, OMB Control Number 0648-
0350 (45 minutes/response).
The response times shown include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding these burden
estimates or any other aspect of the data requirements, including
suggestions for reducing the burden, to NMFS and to OMB (see
ADDRESSES).
Endangered Species Act
A formal Section 7 consultation under the Endangered Species Act
was initiated for the FMP. In a biological opinion dated August 13,
1999, the Assistant Administrator for Fisheries determined that fishing
activities conducted under the FMP and its implementing regulations may
adversely affect but are not likely to jeopardize the continued
existence of any endangered or threatened species under the
jurisdiction of NMFS or result in the destruction or adverse
modification of right whale critical habitat.
Marine Mammal Protection Act
Potential adverse impacts to marine mammals resulting from fishing
activities conducted under this rule are discussed in the FEIS, which
focuses on potential impacts to harbor porpoise, right whales, and
humpback whales.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: January 5, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows.
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
Subpart A--General Provisions
2. In Sec. 648.1, paragraph (a) is revised to read as follows:
Sec. 648.1 Purpose and scope.
(a) This part implements the fishery management plans (FMPs) for
the Atlantic mackerel, squid, and butterfish fisheries (Atlantic
Mackerel, Squid, and Butterfish FMP); Atlantic salmon (Atlantic Salmon
FMP); the Atlantic sea scallop fishery (Atlantic Sea Scallop FMP
(Scallop FMP)); the Atlantic surf clam and ocean quahog fisheries
(Atlantic Surf Clam and Ocean Quahog FMP); the Northeast multispecies
and monkfish fisheries (NE Multispecies FMP) and (Monkfish FMP); the
summer flounder, scup, and black sea bass fisheries (Summer Flounder,
Scup, and Black Sea Bass FMP); the Atlantic bluefish fishery (Atlantic
Bluefish FMP); and the spiny dogfish fishery (Spiny Dogfish FMP). These
FMPs and the regulations in this part govern the conservation and
management of the above named fisheries of the Northeastern United
States.
* * * * *
3. In Sec. 648.2, the definitions for ``Council'' and ``Councils''
are revised and the definition for ``Spiny Dogfish Monitoring
Committee'' is added in alphabetical order to read as follows:
Sec. 648.2 Definitions.
* * * * *
Council means the New England Fishery Management Council (NEFMC)
for the Atlantic sea scallop and the NE multispecies fisheries, or the
Mid-Atlantic Fishery Management Council (MAFMC) for the Atlantic
mackerel, squid, and butterfish; the Atlantic surf clam and ocean
quahog; the summer flounder, scup, and black sea bass fisheries; the
Atlantic bluefish fishery; and the spiny dogfish fishery.
Councils with respect to the monkfish fishery and spiny dogfish
fishery means the New England Fishery Management
[[Page 1569]]
Council (NEFMC) and the Mid-Atlantic Fishery Management Council
(MAFMC).
* * * * *
Spiny Dogfish Monitoring Committee means a committee made up of
staff representatives of the MAFMC, NEFMC, the NMFS Northeast Regional
Office, the Northeast Fisheries Science Center, and the states, as well
as two ex-officio industry members (one from each Council
jurisdiction). The MAFMC Executive Director or a designee chairs the
committee.
* * * * *
4. In Sec. 648.4, paragraph (a)(10) is reserved, paragraph (a)(11)
is added, and the first 4 sentences of paragraph (b) are revised to
read as follows:
Sec. 648.4 Vessel and individual commercial permits.
(a) * * *
(10) [Reserved].
(11) Spiny dogfish vessels. Any vessel of the United States that
commercially fishes for, possesses, or lands spiny dogfish in or from
the EEZ must have been issued and carry on board a valid commercial
spiny dogfish vessel permit.
(b) Permit conditions. Any person who applies for a fishing permit
under this section must agree as a condition of the permit that the
vessel and the vessel's fishing activity, catch, and pertinent gear
(without regard to whether such fishing activity occurs in the EEZ or
landward of the EEZ, and without regard to where such fish or gear are
possessed, taken or landed), are subject to all requirements of this
part, unless exempted from such requirements under this part. All such
fishing activities, catch, and gear will remain subject to all
applicable state requirements. Except as otherwise provided in this
part, if a requirement of this part and a management measure required
by a state or local law differ, any vessel owner permitted to fish in
the EEZ for any species managed under this part must comply with the
more restrictive requirement. Owners and operators of vessels fishing
under the terms of a summer flounder moratorium, scup moratorium, or
black sea bass moratorium permit, or a spiny dogfish permit must also
agree not to land summer flounder, scup, black sea bass, or spiny
dogfish, respectively, in any state after the effective date of a
notification published in the Federal Register stating that the
commercial quota for that state or period has been harvested and that
no commercial quota is available for the respective species. * * *
* * * * *
5. In Sec. 648.5, paragraph (a) is revised to read as follows:
Sec. 648.5 Operator permits.
(a) General. Any operator of a vessel fishing for or possessing sea
scallops in excess of 40 lb (18.1 kg), NE multispecies, monkfish,
mackerel, squid, butterfish, scup, black sea bass, bluefish, or spiny
dogfish harvested in or from the EEZ, or issued a permit for these
species under this part, must have been issued under this section and
carry on board a valid operator's permit. An operator's permit issued
pursuant to parts 649 or 697 of this chapter satisfies the permitting
requirement of this section. This requirement does not apply to
operators of recreational vessels.
* * * * *
6. In Sec. 648.6, paragraph (a) is revised to read as follows:
Sec. 648.6 Dealer/processor permits.
(a) General. All NE multispecies, monkfish, sea scallop, summer
flounder, surf clam, ocean quahog, mackerel, squid, butterfish, scup,
black sea bass, and spiny dogfish dealers, and surf clam and ocean
quahog processors must have been issued under this section and have in
their possession a valid permit for these species.
* * * * *
7. In Sec. 648.7, paragraphs (a)(1)(i), (a)(3)(i), (b) heading, and
(b)(1)(i) are revised to read as follows:
Sec. 648.7 Recordkeeping and reporting requirements.
(a) * * *
(1) * * *
(i) All summer flounder, scup, black sea bass, Atlantic sea
scallop, NE multispecies, monkfish, Atlantic mackerel, squid,
butterfish, or spiny dogfish dealers must provide: Dealer's name and
mailing address; dealer's permit number; name and permit number or name
and hull number (USCG documentation number or state registration
number, whichever is applicable) of vessels from which fish are landed
or received; trip identifier for a trip from which fish are landed or
received; dates of purchases; pounds by species (by market category, if
applicable), price per pound by species (by market category, if
applicable); or total value by species (by market category, if
applicable); port landed; and any other information deemed necessary by
the Regional Administrator. The dealer or other authorized individual
must sign all report forms. If no fish are purchased during a reporting
week, no written report is required to be submitted. If no fish are
purchased during an entire reporting month, a report so stating on the
required form must be submitted.
* * * * *
(3) * * *
(i) Summer flounder, scup, black sea bass, Atlantic sea scallop, NE
multispecies, monkfish, Atlantic mackerel, squid, butterfish, and spiny
dogfish dealers must complete the ``Employment Data'' section of the
Annual Processed Products Report; completion of the other sections of
that form is voluntary. Reports must be submitted to the address
supplied by the Regional Administrator.
* * * * *
(b) Vessel owners or operators.
(1) * * *
(i) Owners or operators of vessels issued a summer flounder, scup,
black sea bass, Atlantic sea scallop, NE multispecies, monkfish
Atlantic mackerel, squid, butterfish, or spiny dogfish permit. The
owner or operator of any vessel issued a permit for the species listed
in the preceding sentence must maintain on board the vessel and submit
an accurate daily fishing log report for all fishing trips, regardless
of species fished for or taken, on forms supplied by or approved by the
Regional Administrator. If authorized in writing by the Regional
Administrator, a vessel owner or operator may submit reports
electronically, for example by using a VMS or other system. At least
the following information, and any other information required by the
Regional Administrator, must be provided: Vessel name; USCG
documentation number (or state registration number, if undocumented);
permit number; date/time sailed; date/time landed; trip type; number of
crew; number of anglers (if a charter or party boat); gear fished;
quantity and size of gear; mesh/ring size; chart area fished; average
depth; latitude/longitude (or loran station and bearings); total hauls
per area fished; average tow time duration; pounds by species (or
count, if a party or charter vessel) of all species landed or
discarded; dealer permit number; dealer name; date sold; port and state
landed; and vessel operator's name, signature, and operator's permit
number (if applicable).
* * * * *
8. In Sec. 648.11, paragraphs (a) and (e) are revised to read as
follows:
Sec. 648.11 At-sea sea sampler/observer coverage.
(a) The Regional Administrator may require any vessel holding a
permit for Atlantic sea scallops, NE multispecies, monkfish, Atlantic
mackerel, squid, butterfish, scup, black sea bass, or spiny
[[Page 1570]]
dogfish, or a moratorium permit for summer flounder, to carry a NMFS-
approved sea sampler/observer. If required by the Regional
Administrator to carry an observer or sea sampler, a vessel may not
engage in any fishing operations in the respective fishery unless an
observer or sea sampler is on board, or the requirement is waived.
* * * * *
(e) The owner or operator of a vessel issued a summer flounder
moratorium permit, a scup moratorium permit, a black sea bass
moratorium permit, or a spiny dogfish permit, if requested by the sea
sampler/observer, also must:
(1) Notify the sea sampler/observer of any sea turtles, marine
mammals, summer flounder, scup, black sea bass, spiny dogfish, or other
specimens taken by the vessel.
(2) Provide the sea sampler/observer with sea turtles, marine
mammals, summer flounder, scup, black sea bass, spiny dogfish, or other
specimens taken by vessel.
* * * * *
9. In Sec. 648.12, the introductory text is revised to read as
follows:
Sec. 648.12 Experimental fishing.
The Regional Administrator may exempt any person or vessel from the
requirements of subparts A (general provisions), B (Atlantic mackerel,
squid, and butterfish), D (sea scallop), E (surf clam and ocean
quahog), F (NE multispecies and monkfish fisheries), G (summer
flounder), H (scup), I (black sea bass), or L (spiny dogfish) of this
part for the conduct of experimental fishing beneficial to the
management of the resources or fishery managed under that subpart. The
Regional Administrator shall consult with the Executive Director of the
MAFMC regarding such exemptions for the Atlantic mackerel, squid,
butterfish, summer flounder, scup, black sea bass, and spiny dogfish
fisheries.
* * * * *
10. In Sec. 648.14, paragraph (z) is reserved and paragraphs
(a)(119), (a)(120), and (aa) are added to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(119) Purchase or otherwise receive, except for transport, spiny
dogfish from any person on board a vessel issued a spiny dogfish
permit, unless the purchaser/receiver is in possession of a valid spiny
dogfish dealer permit.
(120) Purchase or otherwise receive for a commercial purpose spiny
dogfish landed by a federally permitted vessel in any state, from Maine
to Florida, after the effective date of notification published in the
Federal Register stating that the semi-annual quota has been harvested
and the EEZ is closed to the harvest of spiny dogfish.
* * * * *
(z) [Reserved].
(aa) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter, it is unlawful for any person owning or
operating a vessel issued a valid spiny dogfish permit or issued an
operator's permit to do any of the following:
(1) Sell, barter, trade or transfer, or attempt to sell, barter,
trade or otherwise transfer, other than for transport, spiny dogfish,
unless the dealer or transferee has a dealer permit issued under
Sec. 648.6(a).
(2) Fish for or possess spiny dogfish harvested in or from the EEZ
after the effective date of the notification published in the Federal
Register stating that the semi-annual quota has been harvested and that
the EEZ is closed to the harvest of spiny dogfish.
(3) Land spiny dogfish for a commercial purpose after the effective
date of the notification published in the Federal Register stating that
the semi-annual quota has been harvested and that the EEZ is closed to
the harvest of spiny dogfish.
(4) Remove the fins from spiny dogfish and discard the carcass.
(5) Land spiny dogfish fins in excess of 5 percent, by weight, of
the weight of spiny dogfish carcasses.
(6) Store spiny dogfish fins on board a vessel after the vessel
lands spiny dogfish.
10. Subpart K is added and reserved.
Subpart K--[Reserved]
11. Subpart L is added to read as follows:
Subpart L--Management Measures for the Spiny Dogfish Fishery
Sec.
648.230 Catch quotas and other restrictions.
648.231 Closures.
648.232 Time Restrictions. [Reserved]
648.233 Minimum Fish Sizes. [Reserved]
648.234 Gear restrictions. [Reserved]
648.235 Possession limit. [Reserved]
648.236 Special Management Zones. [Reserved]
648.237 Framework provisions.
Sec. 648.230 Catch quotas and other restrictions.
(a) Annual review. The Spiny Dogfish Monitoring Committee will
annually review the following data, subject to availability, to
determine the total allowable level of landings (TAL) and other
restrictions necessary to assure a target fishing mortality rate (F) of
0.2 in 1999 through April 30, 2000, a target F of 0.03 from May 1,
2000, through April 30, 2003, and a target F of 0.08 thereafter will
not be exceeded: Commercial and recreational catch data; current
estimates of F; stock status; recent estimates of recruitment; virtual
population analysis results; levels of noncompliance by fishermen or
individual states; impact of size/mesh regulations; sea sampling data;
impact of gear other than otter trawls and gill nets on the mortality
of spiny dogfish; and any other relevant information.
(b) Recommended measures. Based on this review, the Spiny Dogfish
Monitoring Committee shall recommend to the Joint Spiny Dogfish
Committee a commercial quota and any other measures including those in
paragraphs (b)(1)-(b)(5) of this section that are necessary to assure
that the F specified in paragraph (a) of this section for the upcoming
fishing year (May 1 through April 30) will not be exceeded. The quota
may be set within the range of zero to the maximum allowed. The
measures that may be recommended include, but are not limited to:
(1) Minimum or maximum fish sizes;
(2) Seasons;
(3) Mesh size restrictions;
(4) Trip limits; or
(5) Other gear restrictions.
(c) Annual fishing measures. The Councils' Joint Spiny Dogfish
Committee shall review the recommendations of the Spiny Dogfish
Monitoring Committee. Based on these recommendations and any public
comments, the Joint Spiny Dogfish Committee shall recommend to the
Councils a commercial quota and, possibly, other measures, including
those specified in paragraph (b) of this section, necessary to assure
that the F specified in paragraph (a) of this section for the upcoming
fishing year (May 1 through April 30) will not be exceeded. The
commercial quota may be set within the range of zero to the maximum
allowed. The Councils shall review these recommendations and, based on
the recommendations and any public comments, recommend to the Regional
Administrator a commercial quota and other measures necessary to assure
that the F specified in paragraph (a) of this section for the upcoming
fishing year will not be exceeded. The Councils' recommendations must
include supporting documentation, as appropriate, concerning the
environmental, economic, and other impacts of the recommendations. The
Regional Administrator shall initiate a review of these recommendations
and may modify the recommended quota
[[Page 1571]]
and other management measures to assure that the target F specified in
paragraph (a) of this section will not be exceeded. The Regional
Administrator may modify the Councils' recommendations using any of the
measures that were not rejected by both Councils. After such review,
NMFS shall publish a proposed rule in the Federal Register specifying a
coastwide commercial quota and other measures necessary to assure that
the F specified in paragraph (a) of this section will not be exceeded.
After considering public comments, NMFS shall publish a final rule in
the Federal Register to implement such a quota and other measures.
(d) Distribution of annual quota. (1) The annual quota specified
according to the process outlined in paragraph (a) of this section
shall be allocated between two semi-annual quota periods as follows:
May 1 through October 30 (57.9 percent) and November 1 through April 30
(42.1 percent).
(2) All spiny dogfish landed for a commercial purpose in the states
from Maine through Florida shall be applied against the applicable
semi-annual commercial quota, regardless of where the spiny dogfish
were harvested.
Sec. 648.231 Closures.
The Regional Administrator shall determine the date by which the
quota for each semi-annual period described in Sec. 648.230(d)(1) will
be harvested and shall close the EEZ to fishing for spiny dogfish on
that date for the remainder of that semi-annual period by publishing a
notification in the Federal Register. Upon the closure date and for the
remainder of the semi-annual quota period, no vessel may fish for or
possess spiny dogfish in the EEZ, nor may vessels issued a spiny
dogfish permit under this part land spiny dogfish, nor may dealers
issued a Federal permit purchase spiny dogfish from vessels issued a
spiny dogfish permit under this part.
Sec. 648.232 Time Restrictions. [Reserved]
Sec. 648.233 Minimum Fish Sizes. [Reserved]
Sec. 648.234 Gear restrictions. [Reserved]
Sec. 648.235 Possession limit. [Reserved]
Sec. 648.236 Special Management Zones. [Reserved]
Sec. 648.237 Framework provisions.
(a) Within season management action. The Councils may, at any time,
initiate action to add or adjust management measures if they find that
action is necessary to meet or be consistent with the goals and
objectives of the Spiny Dogfish FMP.
(1) Adjustment process. After the Councils initiate a management
action, they shall develop and analyze appropriate management actions
over the span of at least two Council meetings. The Councils shall
provide the public with advance notice of the availability of both the
proposals and the analysis for comment prior to, and at, the second
Council meeting. The Councils' recommendation on adjustments or
additions to management measures must come from one or more of the
following categories: Minimum fish size; maximum fish size; gear
requirements, restrictions or prohibitions (including, but not limited
to, mesh size restrictions and net limits); regional gear restrictions;
permitting restrictions and reporting requirements; recreational
fishery measures (including possession and size limits and season and
area restrictions); commercial season and area restrictions; commercial
trip or possession limits; fin weight to spiny dogfish landing weight
restrictions; onboard observer requirements; commercial quota system
(including commercial quota allocation procedures and possible quota
set-asides to mitigate bycatch, conduct scientific research, or for
other purposes); recreational harvest limit; annual quota specification
process; FMP Monitoring Committee composition and process; description
and identification of essential fish habitat; description and
identification of habitat areas of particular concern; overfishing
definition and related thresholds and targets; regional season
restrictions (including option to split seasons); restrictions on
vessel size (length and GRT) or shaft horsepower; target quotas;
measures to mitigate marine mammal entanglements and interactions;
regional management; any other management measures currently included
in the Spiny Dogfish FMP; and measures to regulate aquaculture
projects.
(2) Councils' recommendation. After developing management actions
and receiving public testimony, the Councils shall make a
recommendation approved by a majority of each Council's members,
present and voting, to the Regional Administrator. The Councils'
recommendation must include supporting rationale, an analysis of
impacts and, if management measures are recommended, a recommendation
to the Regional Administrator on whether to issue the management
measures as a final rule. If the Councils recommend that the management
measures should be issued as a final rule, they must consider at least
the following factors and provide support and analysis for each factor
considered:
(i) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule and whether regulations have to be in place for an entire
harvest/fishing season.
(ii) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Councils' recommended management measures.
(iii) Whether there is an immediate need to protect the resource.
(iv) Whether there will be a continuing evaluation of management
measures adopted following their implementation as a final rule.
(3) NMFS action. If the Councils' recommendation includes
adjustments or additions to management measures and:
(i) If NMFS concurs with the Councils' recommended management
measures and determines that the recommended management measures should
be issued as a final rule based on the factors specified in paragraph
(b)(2) of this section, then the measures will be issued as a final
rule in the Federal Register.
(ii) If NMFS concurs with the Councils' recommendation and
determines that the recommended management measures should be published
first as a proposed rule, then the measures will be published as a
proposed rule in the Federal Register. After additional public comment,
if NMFS concurs with the Councils' recommendation, then the measures
will be issued as a final rule in the Federal Register.
(iii) If NMFS does not concur, the Councils will be notified in
writing of the reasons for the non-concurrence.
(iv) Framework actions can be taken only in the case where both
Councils approve the proposed measure.
(b) Emergency action. Nothing in this section is meant to derogate
from the authority of the Secretary to take emergency action under
section 305(e) of the Magnuson-Stevens Act.
[FR Doc. 00-630 Filed 1-10-00; 8:45 am]
BILLING CODE 3510-22-F
